Eric Morgan

The court considered an application by InFrontier AF LP to recognize and enforce an arbitral award issued in its favour by a Dubai-based arbitrator under the Dubai International Arbitration Centre (DIAC) Rules.

The respondent, Roeen Rahmani, opposed the application, arguing that the arbitration was not conducted in accordance with the parties’ agreement, that he was denied a fair hearing, and that enforcement would be contrary to Ontario public policy.

The court found that, due to legislative changes in Dubai, the DIAC Rules properly replaced the DIFC-LCIA Rules referenced in the parties’ agreement, and that the respondent had not established any procedural unfairness or public policy violation.

The application to recognize and enforce the award was granted.

Nobul Technologies Inc. brought a motion for a prospective order to restrain a former director, Michael Cappuccitti, from contravening a non-disparagement provision by communicating with shareholders.

Cappuccitti had sent emails to shareholders attaching his statement of claim in a separate action against Nobul, after Nobul refused to circulate it, despite having circulated its own statement of claim against Cappuccitti.

The court found that Cappuccitti's email was not disparaging, noting it was a cover note to circulate a statement of claim with a clear caveat that allegations were unproven.

The court emphasized shareholders' right to communicate and questioned Nobul's "clean hands" in seeking the injunction.

The motion was dismissed as there was no serious issue to be tried regarding a breach of the non-disparagement clause.

This endorsement addresses the costs arising from a denied urgent Norwich motion brought by the plaintiffs.

The court found no urgency for the Norwich order and determined that the defendant was entitled to costs.

The defendant sought costs on a substantial indemnity basis, while the plaintiffs argued for partial indemnity and payment in the cause, with a reduction for the defendant's alleged delay in retaining counsel and a cross-motion.

The court rejected the plaintiffs' arguments, finding no reason to delay the costs award or discount the defendant's costs.

The court ordered the plaintiffs to pay the defendant $50,000 in all-inclusive costs forthwith on a substantial indemnity scale.

The plaintiffs brought an urgent motion for a Norwich order to compel disclosure of information related to alleged defamation and intrusion upon seclusion, stemming from internet postings and domain name purchases.

The court found no urgency, questioned the validity of the intrusion upon seclusion claim regarding dormant domain names, and noted the defamation claim was weak as the articles had been removed.

The motion was deemed a potential tactical move related to ongoing commercial litigation between the parties.

The court dismissed the motion, finding it was not justified for a Norwich order and was akin to a fishing expedition.

The plaintiff brought motions in two related actions concerning an investment in a cannabis trust.

In the 2021 action, the plaintiff sought to amend a judgment against a defaulting defendant, add a new defendant, and amend the statement of claim to include claims under the Securities Act.

In the 2022 action, the plaintiff sought to discontinue the claim against the new defendant to consolidate it into the 2021 action.

The court granted the unopposed motions to amend the judgment and the statement of claim for existing defendants.

The motions concerning the new defendant were adjourned because he had not been properly served.

Kushneryk Morgan LLP brought a motion to be removed as lawyers of record for the defendant.

The defendant, who was recently discovered to be a convicted fraudster operating under a false name, failed to pay his legal accounts and ceased providing instructions to his counsel.

The court granted the motion to remove the law firm as lawyers of record without costs.

The plaintiff brought a motion under Rule 49 to enforce a settlement agreement after the defendant failed to make installment payments on time.

The defendant admitted the breach but requested a 30-day extension to raise funds to complete the settlement.

The court declined to delay enforcement, finding no compelling reason to depart from the agreement's terms.

The court granted judgment for the outstanding balance of $400,000, conditional upon the plaintiff transferring its investment units to the defendant upon payment.

The plaintiffs brought a motion for an interlocutory injunction to enforce non-competition and non-solicitation clauses against a former financial advisor who had sold his book of business to them seven years prior.

The court found the non-competition clause to be overbroad and unenforceable, but upheld the non-solicitation clause as reasonable and severable.

Finding a strong prima facie case of breach, irreparable harm, and a balance of convenience favouring the plaintiffs, the court granted a limited injunction prohibiting the defendant from soliciting his former clients and using the plaintiffs' business records.

The applicant sought leave to appeal an arbitration award regarding the calculation of a net profits interest in a mining property.

The respondent argued the arbitration agreement precluded appeals, but the court found no such exclusion.

However, the court dismissed the application for leave to appeal, concluding that the arbitrator's interpretation of the agreement involved questions of mixed fact and law, and the applicant failed to identify any extricable errors of law.

This endorsement addresses several refusals arising from examinations for discovery between the Toronto Transit Commission (TTC) and two of the Designers, WSP Canada Inc. and IBI Group Architects (Canada) Inc., in a complex construction litigation involving the Steeles West Subway Station project.

The court applied rules of discovery, relevance, and proportionality to compel answers or further productions regarding litigation privilege, evidence supporting delay allegations, reasons for not replacing a contractor, and clarification of legal positions on specifications.

The plaintiffs moved to add Chevron Canada Capital Company (CCCC) as a party defendant to their action seeking to enforce an Ecuadorian judgment against Chevron Corporation.

The court dismissed the motion, finding that the proposed amendment was not legally tenable and disclosed no cause of action against CCCC, as the court had previously ruled that Chevron Canada's corporate veil could not be pierced.

Furthermore, the court found no basis for jurisdiction over CCCC, a Nova Scotia company with no assets or operations in Ontario, and noted that Rule 17.02(o) regarding necessary parties had been repealed.

The plaintiffs sought to enforce a US$9.5 billion Ecuadorian judgment against Chevron Corporation and its seventh-level indirect subsidiary, Chevron Canada Limited.

The defendants moved for summary judgment to dismiss the claim against Chevron Canada, arguing it was a separate legal entity not liable for the judgment.

The plaintiffs argued Chevron Canada's assets were exigible under the Execution Act or that the corporate veil should be pierced.

The court granted summary judgment dismissing the claim against Chevron Canada, finding the Execution Act does not override corporate separateness and there was no basis to pierce the corporate veil absent allegations of wrongdoing by the subsidiary.

The plaintiffs also moved to strike Chevron's statement of defence.

The court struck defences relating to retroactive legislation and international law, but permitted defences alleging the Ecuadorian judgment was procured by fraud, bribery, and a denial of natural justice to proceed to trial.

The plaintiff class, comprising salaried and executive retirees of General Motors of Canada Limited (GMCL), brought a class action alleging that GMCL breached its contracts by reducing post-retirement health care and life insurance benefits.

On motions for partial summary judgment, the court held that the reservation of rights clauses in the benefit documents for salaried employees were ambiguous and did not clearly permit GMCL to reduce benefits after the employees had retired.

Applying principles of contractual interpretation, including contra proferentem and the duty of good faith, the court found GMCL breached its contracts with the salaried retirees, including new hires and early retirees.

However, the court found that the reservation of rights clause for executive retirees was clear and unambiguous, allowing GMCL to reduce their benefits.

The defendant employer appealed an order of a Master requiring production of internal corporate documents and refusing to strike certain documents from the plaintiff’s summary judgment motion record in a certified class action concerning post‑retirement employee benefits.

The court interpreted the certification order and settlement agreement governing the litigation, which restricted discovery and admissible documents to “common documents” shared with class members or historical versions of benefits plan documents.

The Master erred by applying a general relevance test rather than the contractual limitations agreed upon by the parties.

Internal board minutes, memoranda, and corporate financial statements were not “common documents” or historical plan documents because they were not shared with employees as part of the benefits package.

The appeal was allowed, the production order was set aside, and the impugned materials were struck from the motion record.

The plaintiff in a class action regarding post-retirement benefits brought a motion for the production of historical benefits plan documents, including corporate minutes and resolutions concerning the creation of the benefits plans.

The defendant brought a cross-motion to strike certain documents from the plaintiff's affidavit.

The court interpreted the Settlement Agreement between the parties and found that the requested corporate minutes and resolutions fell within the definition of 'historical benefits plan documents' as they were relevant to the objective determination of the contractual terms.

The court ordered the defendant to produce the documents and dismissed the motion to strike.